On April 23, 2018, counsel for former NFL football players involved in the $1 billion concussion settlement filed a motion opposing a Pennsylvania court’s ruling which allowed the NFL to conduct ex parte interviews with the doctors who treated the players. As we have previously covered, the release of settlements had been slowed due to potentially fraudulent claims, allegedly “clogging the system,” and delaying relief to former players who had legitimate injuries.

The motion filed by the Neurocognitive Football Lawyers (NCFL) sought to address the delay issues, providing that the “Audit Procedure, including overreaching ex parte physician interviews, are preventing the Court from hearing the voices of the players because their appeals are being held in abeyance by a procedural quagmire.” The motion proceeds to emphasize that in its relentless quest for fraudulent claims, the claims administrator has circumvented the specific legal issue of whether a denied claim is governed under a particular claims procedure. If a denied claim is, in fact, governed by the claims procedure contemplated by the NCFL, “there is no longer any Claim to Audit,” hence its urgency in attempting to assess how denied claims should be treated.

The underlying issue contended by the NCFL is that the claims administrator has failed to meet the standard of certainty required for fraud — a “knowing false representation of a material fact,” a threshold that the NCFL maintains has not been reached. The NCFL claims that “[a]t best, the Claims Administrator has only raised the specter of a debatable diagnosis in some of the Claim Packages.” The players’ asks include the removal of denied claims from the audit queue, strict reading of audit requirements, expanded information surrounding the amount of claims in audit, and the ability to assist in physician audits, should they ultimately be permitted.

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